David Barrett v. Berry Contracting, L. P., Elite Piping & Civil, Ltd., and Govind Development, LLC ( 2019 )

NUMBER 13-18-00498-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DAVID BARRETT, Appellant,
v.
BERRY CONTRACTING, L.P.,
ELITE PIPING & CIVIL, LTD.,
AND GOVIND DEVELOPMENT,
LLC., Appellees.
On appeal from the County Court at Law No. 1
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
After sustaining injuries while working at a refinery, appellant David Barrett sued
appellees Berry Contracting, LP (Berry), Elite Piping & Civil, Ltd. (Elite), and Govind
Development, LLC (Govind). The trial court granted Berry’s and Elite’s separate motions
for summary judgment. The trial court also granted Govind’s motion to dismiss Barrett’s
claims against it. By two issues, Barrett asserts that the trial court erred by (1) granting
summary judgment in favor of Berry and Elite, and (2) granting Govind’s motion to
dismiss. We affirm.
I. BACKGROUND
The underlying facts are undisputed. Barrett was an employee of Valero. On
January 5, 2016, while he was working on Valero’s premises, the ground collapsed,
causing him to sink three to four feet into “superheated soil.” Barrett sustained severe
burn injuries to both of his legs.
On July 6, 2016, Barrett filed suit against BHP Engineering & Contracting, L.P.
(BHP) and Berry. Barrett did not include an engineer’s certificate of merit with the petition.
See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (listing the requirements for certificates
of merit and when they must be filed).
On August 23, 2016, Barrett filed an amended petition, which omitted BHP as a
defendant but added Govind in its place. Again, Barrett filed no certificate of merit. See
id. On February 1, 2017, Barrett filed a second amended petition, this time omitting
Govind and leaving Berry as the only named defendant.
On December 27, 2017, Barrett filed his third amended petition, which reasserted
his claims against Govind and added Elite as a new defendant. Even though Barrett did
not include a certificate of merit, he acknowledged the applicable statute and referenced
§ 150.002’s near-limitations exception, stating, “Plaintiff pleads and is prepared to
demonstrate that this filing is within ten (10) days of the statute of limitations.” See id. §
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150.002(c). On January 28, 2018, Barrett filed an affidavit from Wesley Goodwin, a
professional engineer, and offered it as his certificate of merit.
On March 27, 2018, Elite filed a motion for summary judgment. According to Elite,
it was a subcontractor of Valero, the general contractor. Elite asserted that Valero
provided Elite and Barrett with workers’ compensation insurance. Thus, as a
subcontractor and deemed employee of Valero, Elite argued that it was “entitled to the
exclusive remedy defense against the claims of Barrett.” See TEX. LAB. CODE ANN. §
408.001(a) (explaining the exclusive remedy defense available to subcontractors in
certain scenarios). On May 1, 2018, the trial court granted Elite’s motion for summary
judgment.
On June 4, 2018, Govind filed a motion to dismiss Barrett’s claims against it.
Govind asserted that Barrett violated the statute by failing to file a certificate of merit with
the first petition that named Govind as a defendant. See TEX. CIV. PRAC. & REM. CODE
ANN. § 150.002. Govind alternatively claimed that the statute required dismissal because
the affidavit by Goodwin was untimely and defective. See id. Barrett filed a response to
Govind’s motion, arguing that “it was not possible to obtain a Certificate of Merit before
the running of the statute of limitations.”
On June 15, 2018, Berry filed a motion for summary judgment that was almost
identical to Elite’s motion for summary judgment. Berry argued that it was a deemed
employee of Valero because Berry had a written contract with Valero to provide Berry
with workers’ compensation insurance. Therefore, similar to Elite, Berry asserted that it
was entitled to the exclusive remedy defense. See TEX. LAB. CODE ANN. § 406.123(e).
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On August 15, 2018, the trial court held a hearing and granted Berry’s motion for summary
judgment.
On September 11, 2018, the trial court granted Govind’s motion to dismiss. On
October 11, 2018, the trial court signed an amended order, specifying that Barrett’s claims
against Govind were dismissed without prejudice. This appeal ensued.
II. “PROVIDE” COVERAGE
In his first issue, Barrett argues that the trial court erred by granting summary
judgment in favor of Berry and Elite because the contracts do not meet the requirements
of § 406.123(a) of the Texas Labor Code. See id. § 406.123(a).
A. Standard of Review and Applicable Law
We review a traditional summary judgment de novo. See Merriman v. XTO
Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). In a traditional motion for summary
judgment, the movant has the burden to show both that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law. See TEX. R. CIV. P.
166a(c); Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). Once
the movant meets its burden, the burden shifts to the non-movant to present evidence
raising a genuine issue of material fact; if the non-movant raises a fact issue, summary
judgment is not appropriate. See Ayeni v. State, 440 S.W.3d 707, 709 (Tex. App.—Austin
2013, no pet.). All evidence favorable to the non-movant must be taken as true, and all
reasonable doubts must be resolved in favor of the non-movant. See Childs v.
Haussecker, 974 S.W.2d 31, 40 (Tex. 1998). “Summary judgment is proper if the
defendant disproves at least one element of each of the plaintiff’s claims, or establishes
all elements of an affirmative defense to each claim.” Am. Tobacco Co. v. Grinnell, 951
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S.W.2d 420, 425 (Tex. 1997); see Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704
(Tex. App.—Houston [1st Dist.] 2014, no pet.) (“When a defendant moves for traditional
summary judgment, he must either: (1) disprove at least one essential element of the
plaintiff’s cause of action; or (2) plead and conclusively establish each essential element
of his affirmative defense, thereby defeating the plaintiff’s cause of action.”).
In the context of summary judgments, “[i]ssues not expressly presented to the trial
court by written motion, answer or other response shall not be considered on appeal as
grounds for reversal.” Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex.
2015) (quoting TEX. R. CIV. P. 166a(c)). Thus, in order to preserve error for appeal,
“[c]omplaints and argument on appeal must correspond with the complaint made at the
trial court level.” Isaacs v. Bishop, 249 S.W.3d 100, 113 n.113 (Tex. App.—Texarkana
2008, pet. denied); see TEX. R. APP. P. 33.1.
The “[r]ecovery of workers’ compensation benefits is the exclusive remedy of an
employee covered by workers’ compensation insurance coverage . . . against the
employer or an agent or employee of the employer for . . . a work-related injury sustained
by the employee.” TEX. LAB. CODE ANN. § 408.001(a). Subcontractors can claim the
exclusive remedy defense only if the subcontractor qualifies as a statutory employee of
the general contractor. See id. § 406.123(a); TIC Energy & Chem., Inc. v. Martin, 498
S.W.3d 68, 74 (Tex. 2016). To qualify as a statutory employee, the subcontractor must
enter into a written agreement with the general contractor “under which the general
contractor provides workers’ compensation insurance coverage to the subcontractor and
the employees of the subcontractor.” TEX. LAB. CODE ANN. § 406.123(a) (emphasis
added).
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“[T]o seek the exclusive remedy defense, section 406.123(a) requires a general
contractor to do something more than simply passing the onus of obtaining coverage to
the subcontractor.” Halferty v. Flextronics Am., LLC, 545 S.W.3d 708, 714 (Tex. App.—
Corpus Christi–Edinburg 2018, pet. denied); see Becon Const. Co. v. Alonso, 444 S.W.3d
824, 834 (Tex. App.—Beaumont 2014, pet. denied).
B. Analysis
Barrett argues on appeal that the written contracts between Valero and Elite and
Berry did not obligate Valero to continue to provide coverage if the rolling owner controlled
insurance program (ROCIP) was discontinued after the work began. Thus, Barrett claims
that Valero did not “provide” workers’ compensation insurance coverage to Elite and
Berry, which means Berry and Elite were not entitled to the exclusive remedy defense.
See TEX. LAB. CODE ANN. § 406.123(a). However, this does not correspond with the
arguments raised by Barrett in response to Elite’s and Berry’s motions for summary
judgment at the trial court level.
In response to Berry’s motion for summary judgment, Barrett argued that, based
on the terms of the written contract, Berry was an independent contractor as opposed to
a deemed employee, meaning Berry was not entitled to the protection of the exclusive
remedy defense. Because Barrett’s argument that Valero did not “provide” Berry
coverage has been made for the first time on appeal, this issue is waived. See TEX. R.
CIV. P. 166a(c)); Wells Fargo Bank, 458 S.W.3d at 916.
Likewise, in response to Elite’s motion for summary judgment, Barrett raised four
arguments: (1) Elite did not establish that the written contract to provide coverage was in
force and effect at the time the incident occurred; (2) Elite did not establish that the written
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contract covered the specific time and location of the injury; (3) there was a genuine issue
of material fact as to whether Valero qualified as a general contractor; and (4) the written
contract described Elite as an independent contractor, which precluded Elite from
claiming deemed employee status. Barrett addresses none of these issues on appeal
and instead argues that Valero did not “provide” coverage to Elite because “the contracts
provide that in the event that Valero does not elect to furnish workers’ compensation
insurance, that Berry and Elite agree to furnish the insurance at their expense, as
opposed to Valero’s.” Because Barrett’s appellate issue was not properly raised in the
summary judgment proceedings at the trial court level, this issue is waived. See TEX. R.
CIV. P. 166a(c); Wells Fargo Bank, 458 S.W.3d at 916.
Even assuming that Barrett properly preserved this appellate issue, we have
recently held that to “provide” in the context of the Texas Workers’ Compensation Act
means “to supply or make available.” Halferty, 545 S.W.3d at 713. To determine whether
a general contractor has provided coverage within the meaning of the statute, “we look at
what did happen, not what might happen.” HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 359
n.4 (Tex. 2009). In the present case, Barrett complains that the written contracts did not
obligate Valero to continue coverage in case the ROCIP was cancelled after work began;
however, when we look at what actually happened instead of what might happen, the
reality is that Valero purchased a policy that covered Elite’s and Berry’s work at the
worksite and Barrett accepted the workers’ compensation benefits offered to him. See
HCBeck, 284 S.W.3d at 359 n.4; Becon, 444 S.W.3d at 834 (holding that, despite the
general contractor not being required to provide compensation coverage if the plan were
terminated, the exclusive remedy defense applied because by “look[ing] at what
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happened, not what might happen . . . the employees collected compensation benefits
under coverage put in place based on the general workplace insurance plan established
by [the general contractor]”). We conclude that Valero “provided” workers’ compensation
coverage to Berry and Elite. See HCBeck, 284 S.W.3d at 359 n.4; Becon, 444 S.W.3d
at 834. Therefore, the trial court did not err in granting summary judgment in favor of Elite
and Berry. We overrule Barret’s first issue.
III. CERTIFICATE OF MERIT
In his second issue, Barrett argues that the trial court erred in granting Govind’s
motion to dismiss.
A. Standard of Review and Applicable Law
“We review a trial court’s ruling on a motion to dismiss a case for failure to comply
with section 150.002 for an abuse of discretion.” Barron, Stark & Swift Consulting Eng’rs,
LP v. First Baptist Church, Vidor, 551 S.W.3d 320, 322 (Tex. App.—Beaumont 2018, no
pet.). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably,
without reference to guiding rules and principles. See id.
In claims against certain licensed or registered professionals, such as a licensed
professional engineer and the firm she or he represents, the plaintiff is generally
supposed to file a certificate of merit “with the complaint” against said defendant. See
TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a), (c) (stating that the certificate of merit
must be from a third-party qualified professional that is competent to testify, holds the
same professional license or registration as the defendant, and practices in the same
areas as the defendant); Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520
S.W.3d 887, 890 (Tex. 2017) (holding that in a suit against an engineering firm, the
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plaintiff needed to file a certificate of merit from a qualified third-party engineer); Crosstex
Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 389 (Tex. 2014). Many courts
have interpreted this language to require plaintiffs to file a certificate of merit
contemporaneously “with a ‘first-filed petition’ as to the defendants in which a section
150.002 claim applies.” Barron, 551 S.W.3d at 322; see TIC N. Cent. Dallas 3, L.L.C. v.
Envirobusiness, Inc., 463 S.W.3d 71, 77 (Tex. App.—Dallas 2014, pet. denied); JJW
Dev., L.L.C. v. Strand Sys. Eng’g, Inc., 378 S.W.3d 571, 576 (Tex. App.—Dallas 2012,
pet. denied); Sharp Eng’g v. Luis, 321 S.W.3d 748, 752 (Tex. App.—Houston [14th Dist.]
2010, no pet.).
The contemporaneous filing requirement has an exception that is only available if
the plaintiff “both files within ten days of the end of the limitations period and alleges that
the late filing prevented the preparation of a certificate of merit.” Crosstex, 430 S.W.3d
at 390 (emphasis in original); see TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(c). If a
plaintiff satisfies both requirements, then the plaintiff “shall have 30 days after the filing of
the complaint to supplement the pleading” with the certificate of merit. TEX. CIV. PRAC. &
REM. CODE ANN. § 150.002(c). However, the “failure to file a certificate of merit with the
original petition cannot be cured by amendment.” Crosstex, 430 S.W.3d at 395.
B. Analysis
Barrett’s first amended petition was the first petition to name Govind as a
defendant. This petition was filed about sixteen months before the end of the limitations
period, meaning Barrett was still subject to the contemporaneous filing requirement. See
TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a); Crosstex, 430 S.W.3d at 390. However,
Barrett did not file a certificate of merit with his first amended complaint. This failure could
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not be cured by filing a certificate of merit after Barrett’s third amended petition. Crosstex,
430 S.W.3d at 395. By failing to contemporaneously file a certificate of merit, Barrett’s
claims were subject to dismissal. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e).
Therefore, the trial court did not abuse its discretion in granting Govind’s motion to
dismiss. We overrule Barrett’s second issue.
IV. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Delivered and filed the
3rd day of October, 2019.
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